Mazzitelli v Regina

Court of Criminal Appeal (NSW)|2002-10-31|Before: Spigelman CJ, O'Keefe J, Simpson J

INTRODUCTION 3 Michele Mazzitelli (the appellant) was convicted on 17 October 2001 on a charge of being knowingly concerned in the importation into Australia of not less than a commercial quantity of a prohibited import, namely, cocaine, contrary to the provisions of s 233B(1)(d) of the Customs Act 1901 (Cth). The gross quantity involved was 28.174 kilograms which yielded 17.4927 kilograms of pure cocaine. A commercial quantity of cocaine is 2 kilograms. The estimated street value of the cocaine imported was $7 million. The maximum penalty for the offence is imprisonment for life or a fine not exceeding $750,000, or both (s 235(2)(c)). 4 On 20 November 2001 Judge McGuire of the District Court (the Trial Judge) sentenced the appellant to imprisonment for 19 years and 8 months with a non-parole period of 12 years and 4 months. The sentence was fixed to commence on 12 May 2000, the date on which the appellant was taken into custody, and to expire on 11 January 2020. The non-parole period was fixed to expire on 11 September 2012. 5 The appellant appealed against his conviction on the grounds that the Trial Judge:

(ii) allowed evidence of the facts of the arrest of co-accused which included the discovery by co-accused persons of the drugs the subject of the indictment;

(iii) allowed evidence of contacts made by the appellant with a third party who was not charged but who engaged in contact with co-accused persons;

(iv) allowed evidence of telephone intercept material which was not relevant to the proceedings;

(v) allowed evidence of the facts and circumstances concerning the transfer of drugs from the auto electrians to the final destination at Liverpool including evidence of conversations between co-accused persons and Anastasiou, none of which were probative of the guilt of the appellant but were prejudicial;

(vi) erred in refusing to redirect the jury on the question of how circumstantial evidence was to be applied;

(vii) erred by failing to properly direct the jury on the question of circumstantial evidence;

(viii) failed to sum up fairly for the accused. 6 At the hearing counsel for the appellant informed the court that ground of appeal numbered (i) was not pressed. The other grounds were dealt with under the headings: · Circumstantial evidence direction · Lowering of standard of proof · Unfairness of summing up.

Leave was also sought to add a further ground of appeal namely, that the Trial Judge "should have given an unreliability warning in relation to the evidence of Christakis Anastasiou". Leave to add this ground was given. In addition, leave to appeal against the severity of the sentence was sought and argument was advanced to the effect that the sentence imposed was manifestly excessive.

BACKGROUND 7 Christakis Anastasiou (Anastasiou) was an auto electrician. He owned an auto-electrician's business known as CMP Electrical. It operated from premises at Waterloo Road, Greenacre. Anastasiou was the brother-in-law of the appellant. They had known one another for some 16 years and the relationship between them was said to be good. 8 The evidence reveals that at about late 1999 or early 2000 the appellant approached Anastasiou with the request that he help him bring into Australia a steam cleaning machine for cleaning parts, buckets and metal objects generally. It was said that in order to import the machine in question it was necessary that there be an established company to whom the machine could be consigned. In order to assist, Anastasiou gave the appellant one of his business cards and one of his business letterheads which he stamped with his company's seal. 9 About three months after this had taken place the appellant is said to have approached Anastasiou and to have asked him if he had received any papers in respect of the machine. No papers had arrived at that time but approximately a month after this approach had been made papers relating to the machine, including an invoice for an amount of about $6,400 arrived at Anastasiou's business premises. They were followed a short time later by an operations manual and instruction book. These arrived about two weeks before the machine was delivered. After these documents, manual and book had arrived Anastasiou informed the appellant and he came to the workshop and took possession of the material. Anastasiou was told by the appellant that he would bring people to look at the machine and later that he was organising an electrician to make some adjustments to the wiring of the machine. The appellant asked Anastasiou to advise him when the machine arrived, but told him he was not to touch or open it. 10 The machine arrived in Sydney, apparently from Panama, and Anastasiou was contacted by a representative of a customs agent, Panalpina Word Transport at Alexandria (Panalpina), informed of the arrival of the machine and advised as to the amount to be paid in order to have it cleared. Anastasiou informed the appellant of what had occurred and after some discussion, and at the request of the appellant, arranged with another firm of customs and freight brokers, JJ Lawson of Mascot, to have the machine cleared. Anastasiou contacted a representative of that firm and arranged to send the papers concerning the machine to him. In the course of his dealings with JJ Lawson Anastasiou informed the representative of that firm that he was importing the machine in question for his brother-in-law, that the machine would be used to clean parts and that he was effecting the importation because his brother-in-law could not import the machine as a person, rather than as a business. Anastasiou was informed that this was not correct. 11 Anastasiou went to the appellant's home where the appellant gave him an envelope. The envelope contained an amount of $6,120 in cash and had written on it the words and figures "$6,120 machine". Anastasiou, having taken $530 for himself, gave the residue of $5,590 to Mr Terry Morris for payment to JJ Lawson and was advised that the goods had been customs cleared. 12 Evidence of a number of telephone conversations between Anastasiou and the appellant was tendered at the trial. These telephone conversations had been lawfully intercepted pursuant to warrants under the Telecommunications (Interception) Act 1979. The thrust of them was concerned with the handling and delivery of the cleaning machine. 13 The machine in question had been received in Sydney on 25 April 2000 from Panama. The evidence indicated that the machine in question was an old autoclave, that it was not able to be operated and was of little commercial value. Its purpose was for sterilising implements so as to destroy completely all known micro-organisms and viruses. It did not clean implements and was not suitable for cleaning vehicle or other parts. The evidence also revealed that the consignor as named in the documentation was non-existent. 14 The machine was opened, searched and tested by the authorities. Cocaine was found concealed in it. Part of the cocaine was removed from the machine, but an amount sufficient for relevant purposes was left in it and a controlled delivery was arranged after the machine has been reassembled and put back into its crate. The controlled delivery was made to Anastasiou's business premises at Greenacre on 10 May 2000. 15 The appellant gave evidence at the trial in the course of which it emerged that he had driven to the Greenacre premises on a working day, had inspected the crate but had not opened it. Anastasiou was informed by the appellant that someone would come the next day to collect the machine. The next day a person identified as Marouf El Hassan came to Anastasiou's premises at Greenacre accompanied by a truck and driver. El Hassan painted out certain marks on the crate containing the machine, loaded the crate onto the truck and took it away. 16 The vehicle onto which the crate was loaded was driven by Mr Jim Katsanevakis, an employee of Stephen Morris. The crate was taken to the premises of Troy Chatman at Lewis Road, Liverpool. Chatman opened the machine and removed the contents. For his part in the delivery and removal Chatman was paid $5,000. Radwin El Hassan and Ali Chami went to the premises at Lewis Road, Liverpool and inspected the powder. They realised it was not cocaine however, shortly thereafter the two El Hassans and Chatman were arrested. 17 The evidence tendered at the trial included phone calls by the appellant and Marouf El Hassan to Stephen Morris, the owner of the truck that had delivered the machine from Anastasiou's premises at Greenacre to Chatman's premises at Lewis Road, Liverpool. However, there was no evidence of meetings between the appellant or Anastasiou with either of the El Hassans, Chami or Chatman. 18 In the course of his evidence the appellant claimed never to have heard of the El Hassans or Chami or Chatman. He further deposed to the fact that he had never imported anything into Australia, denied any approach in that regard to Anastasiou and further denied that he had had any conversations with Anastasiou about the machine, its arrival in Australia or about its delivery and collection as deposed to by Anastasiou. His evidence was in effect a general denial of any involvement in the importation, delivery or re-delivery of the machine. However, he claimed to have had a conversation with Anastasiou and a man named Carlos about the machine and with Anastasiou about a customs broker. He admitted to having paid $2,000 towards the customs fee, but denied having provided the full amount of $6,120 but did admit to having written "$6120" on the envelope together with the words "cleaning machine" and to trying to arrange an electrician to do something to the machine. 19 In his evidence the appellant accepted that he had in fact taken the paper work concerning the machine to the customs agent, JJ Lawson, but said that he had done so at Anastasiou's request. He admitted that he had seen the crate at Anastasiou's premises after he had driven from Ryde to Greenacre for this purpose. He further admitted that he was going to arrange for an electrician to make electrical modifications to the machine but said that this was also to be on behalf of Anastasiou. However, he said that he had met the person by the name of Carlos by chance at an hotel and that Carlos had told him not to worry about making arrangements for an electrician as he, Carlos, had already arranged for this. In cross-examination the Crown put to the appellant that there was never mention of anyone called Carlos in the intercepted telephone call. The appellant agreed. It was also suggested to him that there was in fact no such person. He denied this. 20 The appellant did not deny in his evidence the intercepted telephone calls but claimed that properly interpreted they did not reveal him as giving instructions to Anastasiou. Furthermore, he said that the $2,000 which he had paid as his share of the customs fees was an investment by him in the machine but that he did not know that the machine contained cocaine. 21 Anastasiou denied any knowledge that the cleaning machine contained drugs. His evidence was that he was an innocent pawn of the appellant. The Crown case accepted this. For his part the appellant claimed that he was the innocent pawn, that he was not at the Lewis Road, Liverpool premises when the arrests took place and that those responsible for the purchase of the machine and importation of the drugs, namely, the El Hassans, Chami and Chatman were unknown to him and that he was no way involved in the importation. No admissions were made by the appellant prior to trial. It was argued on his behalf that the case against him was entirely circumstantial and that Anastasiou, whose evidence was the subject of considerable challenge in cross examination, was the guilty party, not the appellant. 22 An important part of the Crown case consisted of the records of the intercepted telephone conversations. Anastasiou and the appellant each placed different interpretations on such telephone conversations. The Crown case was that a proper understanding of the conversations clearly demonstrated that it was the appellant who was giving the instructions to Anastasiou in respect of the delivery of and other matters relating to the autoclave machine. The appellant contended that it was Anastasiou who was giving such instructions, not he. A clear factual issue was posed in relation to the effect of the intercepted telephone conversations. The resolution of that factual issue was a jury question.

Circumstantial Evidence Direction 23 At the trial counsel for the appellant sought a circumstantial evidence direction, but this was refused by the Trial Judge. The Trial Judge stated that the prosecution case was in the main direct in its character. The evidence of Anastasiou, the intercepted telephone calls, the envelope containing $6,120, the steps taken by the appellant in relation to the money, the admitted contribution of $2,000 by the appellant, the visit by the appellant to Anastasiou's premises following the delivery of the machine to those premises and his instructions not to open the crate in with the machine was housed were relevant in this regard. From the extent of the direct evidence the Trial Judge concluded that the extent of the circumstantial evidence was not great, and was not, of itself, sufficient to establish the guilt of the appellant. In these circumstances the Trial Judge declined to give an express direction as to circumstantial evidence. 24 The Trial Judge did, however, direct the jury as to inferences that could be drawn from the evidence. He instructed the jury that: "In this case you are going to be asked to draw inferences. That is something that jurors are asked to do every day. It is commonplace procedure so do not think that something unusual is occurring when that is put before you. A Crown is entitled to prove an accused's intention and conduct by asking the jury to infer from proven facts and circumstances that conduct or intention, provided that the only reasonable and sensible inference to emerge is consistent with the fact asserted by the Crown or the proposition asserted by the Crown. In short, although you are entitled to draw inferences from facts you find proved, you can only draw those inferences provided that they are the only reasonable and rational inferences to emerge from such proven facts." 25 The Trial Judge directed the jury as to the onus and standard of proof. The onus was said to be on the Crown and the standard of proof was correctly stated as being proof beyond reasonable doubt. In this context the Trial Judge directed the jury that: "The Crown has brought this charge against the accused and it is incumbent upon the Crown to prove it and the standard of proof is proof beyond a reasonable doubt. There is no obligation upon the accused to prove nor disprove anything. He does not have to persuade you that inferences contended for by the Crown do not arise. He does not have to persuade you that he did not engage in the importation of this cocaine, that he was not knowingly concerned in that venture, it is for the Crown to prove that he was so engaged. You heard that the Crown has to prove its case beyond a reasonable doubt and in the normal case the matters that the Crown would have to prove are firstly that between 1 January 2000 and 12 May 2000 the accused was knowingly concerned in an importation of cocaine, that cocaine is a prohibited import and that the amount of cocaine involved was the commercial quantity, that is in excess of 2 kilograms of pure cocaine. Now you have heard (counsel for the accused) say that none of those matters are in issue except the proposition that the accused was knowingly concerned in the importation of cocaine. So that is the only issue for your determination, whether the Crown has proved that he was so knowingly concerned in that importation."

and a little later: "You will readily appreciate that the Crown must establish beyond reasonable doubt that Michael (sic) Mazzitelli's activities were involved in the importation of cocaine as distinct from merely the importation of a machine. It is for the Crown to prove that he took steps which actively assisted in the importation of the cocaine." 26 Towards the end of the summing up, the Trial Judge reminded the jury that: "Although he (the appellant) was not obliged to convince you of anything or to raise any doubts in your mind it was put to you that his sworn denials here before you would have raised a reasonable doubt in your minds as to his guilt when taken with the evidence of the unreliable Anastasiou." 27 These directions, in my opinion, clearly put to the jury what it was that the Crown had to prove concerning the involvement of the appellant in the importation of the cocaine that was inside the autoclave and correctly directed them as to the onus and standard of proof. 28 There is no doubt that the conflict between the evidence of Anastasiou on the one hand and the appellant on the other was important. The Trial Judge's directions made it clear that there was no onus on the appellant and that, whilst the conflict was important, the case was not merely a contest between the evidence of those two persons. 29 The intercepted phone calls between Anastasiou and the appellant were also important. The original tapes of the conversations and the transcripts of those tapes were before the jury, as were the differing interpretations placed on them by the Crown and the defence. The issue of fact in relation to them was left to the jury, who were reminded of the respective submissions concerning the tapes. The Trial Judge said: "The Crown submits that the clear tenor, the clear flavour that emerges from the calls is that Mazzitelli was directing Anastasiou and that Anastasiou was in effect reporting to Mazzitelli with regard to the progress of the machine, what was happening to it, how it was being moved about and the like."

and left to the jury the question which arose from those intercepted telephone conversations, namely: "You decide from listening to the tapes and your consideration of the transcript who was telling who what to do and who was reporting to the other." 30 The verdict of the jury involves the acceptance of the Crown's version as to the meaning and effect of the intercepted telephone conversations. 31 The appellant relied on the decision in Regina v Clarke (1995) 78 A Crim R 226 as authority for the proposition that a circumstantial evidence direction was required and that failure to give such a direction constituted error on the part of the Trial Judge. In that case Hunt CJ at CL, with whom Smart and McInerney JJ relevantly agreed, said: "An accused … need point only to evidence from which it can be said that a reasonable possibility that the circumstances point to someone other than himself as being guilty of (the) offence. If he is able to do so, then a circumstantial direction, in my view, should usually be given in order to enable a jury to go about their task properly." (at 231) 32 It should be noted that the case is not authority for the proposition that a circumstantial evidence direction must be given in every case. Whether such a direction is required or not will depend upon the nature of the case and the extent to which the Crown case depends upon circumstantial evidence. The circumstantial evidence direction sought on behalf of the appellant deals with an aspect of the onus and standard of proof and the drawing of inferences where the Crown case depends wholly or largely on the evidence other than direct evidence. 33 In Shepherd v The Queen (1990) 170 CLR 573 Mason CJ said that: "I agree with Dawson J and McHugh J that Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 is not authority for the proposition that, in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. I am also in general agreement with the reasons given by Dawson J for the conclusion that the giving of such a direction is not required either as a matter of law or in order to ensure conformity with the general standard of proof in criminal cases." (at 575) 34 Dawson J (with whom Toohey and Gaudron JJ agreed), said: "The learned Trial Judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference, but should be the only rational inference that could be drawn from the circumstances … whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given." (at 578)

and: "… where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), para 2497, pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." (at 581). 35 McHugh J said: "If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular fact has been proved beyond reasonable doubt." (at 592)

and: "Jurors are under a duty not to find an accused person guilty of an offence unless they are satisfied beyond reasonable doubt of that person's guilt. But they are not under a duty to find any particular fact beyond reasonable doubt … To direct the jury that, as a matter of law, they cannot find an accused person guilty of an offence unless they find a particular fact beyond reasonable doubt would be to trespass upon their right to determine whether, upon evidence properly admitted, the guilt of the accused has been proved beyond reasonable doubt." (at 594) 36 In my opinion the above directions given by the Trial Judge were in accordance with authority and were correct and adequate in the circumstances of the particular case. 37 In particular, his Honour came very close to giving the directions sought when he said: "You can only draw those inferences provided that they are the only reasonable and rational inferences to emerge from such proven facts." [Emphasis added]" 38 In this regard it should be remembered that Shepherd v The Queen (supra) was itself a case concerned with a conspiracy to import narcotics. The evidence in that case fell into three categories. The first was direct evidence of what was, in effect, an admission by the accused. The second category was evidence given by accomplices. The third category consisted of evidence of financial transactions which the Crown relied on to prove that the accused shared the income of a criminal organisation to which the admissions referred to in the first category referred. The case was thus not one which rested entirely, or largely, on circumstantial evidence. 39 In the present matter, the Crown case was not one that depended wholly or largely on circumstantial evidence. Nor was the Crown case put to the jury, or left by the Trial Judge to the jury, as a contest between the appellant on the one hand and Anastasiou on the other. Anastasiou's evidence was correctly left to the jury as one, but by no means the only, important element in the case made by the Crown against the appellant. There were other important evidentiary elements. The intercepted telephone calls were one such important element in the Crown case. The directions given in relation to them and the interpretation to be placed upon them were adequate and correct. 40 Having regard to the whole of the evidence I do not think that the Trial Judge erred in refusing to give an express "circumstantial evidence" direction. His directions as to the drawing of inferences and the relationship between the drawing of inferences and the onus and standard of proof that lay on the Crown were in my opinion sufficient in the circumstances of the case.

Lowering of standard of proof 41 On behalf of the appellant it was submitted that the segment of the summing up referred to in paragraph 29above, namely: "You decide from listening to the tapes and your consideration of the transcript who was telling who what to do and who was reporting to the other."

involved an error of law in that it "invited the jury to determine on the balance of probabilities who was in control" in that it "effectively lowered the onus of proof". 42 I do not think that this is correct. The words used do not say that and it is not an implication from what was said. Furthermore, the summing up must be read as a whole and the passage on which counsel for the appellant relied in this regard does not, in my opinion, carry the meaning or have the effect attributed to it on behalf of the appellant. The summing-up clearly, correctly and on more than one occasion directs the jury about the onus and standard of proof that the Crown had to satisfy. Taken as a whole the directions given by the Trial Judge properly left to the jury that they had to be satisfied beyond reasonable doubt that it was the appellant who was giving the directions and that unless they were so satisfied the Crown had not established the charge to the relevant standard. There was, in my opinion, no reversal of the onus of proof or lowering of the standard of proof.

Unreliability Warning 43 It was submitted on behalf of the appellant that his counsel at the trial in effect sought a direction from the Trial Judge as to the unreliability of the evidence of Anastasiou and that although such submission was accepted by the Trial Judge as valid, no unreliability direction was given. The reference relied upon by counsel for the appellant came in the course of a submission that the Trial Judge should give a particular circumstantial evidence direction. It formed part of the following sequence: "His Honour: … This is not a circumstantial evidence case. There is so much direct evidence Mr McCrudden. McCrudden: With respect, your Honour, I would submit there is very little direct evidence and that comes only from the telephone intercepts and the admissions that Mr Mazzitelli has himself made in the witness box. His Honour: What about Mr Anastasiou's evidence? McCrudden: Well that is direct evidence, your Honour, but the circumstances in which he gives that mean that as a - legal sense in the circumstances in which he gives that evidence in my submission is not a terribly telling part of the case. It is what the Crown relies upon of course, but by the same token the question of the reliability and accuracy of Mr Anastasiou on his own evidence and the material which he gave when he gave his record of interview to the police, the difference in the statements renders his evidence, if not suspect, just unreliable. His Honour: Well, that's a valid submission, but I don't know that it's something that the jury has to accept. Mr McCrudden, as you well know, from your experience in these matters, you can take any witness, you could take Mother Teresa to five accounts of some event that she has given, and you will find inconsistencies. I dare (say) that even Mr Farmer here (Crown Prosecutor) would be detected in some inconsistencies … so the mere fact that there are inconsistencies in those statements …" 44 A fair reading of this interchange does not, in my opinion, lead to the conclusion that counsel for the appellant had sought a direction under s 165 of the Evidence Act 1995. That section applies to evidence of a kind that may be unreliable, including evidence that is within specifically nominated categories. None of these was referred to at the trial by counsel for the appellant. However on appeal it was submitted that, having regard to the allegations made against Anastasiou in cross-examination (all of which were denied), the Trial Judge should nonetheless have given a direction in accordance with the section. 45 The obligation referred to in s 165(2) of the Evidence Act 1995 is triggered in a case in which there is a jury, by a request from a party. The direction given by the section is to warn the jury that the evidence may be unreliable, to inform the jury of the matters that may cause it to be so, and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. However such direction is not of universal application, since a judge at trial may decide not to comply with s 165(2) if there are good reasons for not doing so (s 165(3)). 46 Section 165(1) is not an exclusive code in relation to the relevant subject matter. It does not deal with unreliability of witnesses generally. It is directed towards a warning in respect of those categories of cases in which juries should be informed of the accumulated judicial experience concerning such categories. Where the evidence falls within one of those categories, including categories nominated in s 165(1)(a)-(g), juries should be made aware of the need for close analysis of such evidence, of the need for caution in determining whether to accept it and as to the weight they should give to it. 47 It is for a Trial Judge to determine whether the requirements of any of the subsections of s 165(1) have been met. In the present case, it was not expressly put to the Trial Judge that Anastasiou was a witness who might reasonably be supposed to have been criminally concerned in the importation of cocaine the subject of the charge against the appellant. The only basis advanced at the trial was that there were said to be inconsistencies in Anastasiou's evidence as well as inconsistencies between his evidence and prior statements made to the police. 48 In the course of his summing up, the Trial Judge reminded the jury of the submission that Anastasiou should be regarded as "unreliable" and of the specific argument that had been advanced to the jury in support of such submission, namely: "The defendant has submitted that the only inference to be drawn from Anastasiou's evidence is that he is unreliable, that inconsistencies in his evidence could be used to raise doubts as to his version of events in particular with regard to the business cards and other crucial matters, for example the payment of the $6,120." 49 From these references and from a more general perusal of the transcript it is clear that no argument was put to the jury that Anastasiou was a person who fell within s 165(1)(d) of the Evidence Act 1995. Although this is not conclusive as to whether or not a direction under that section or of such a kind should be given, the mode of conduct of the trial, and the absence of any specific request for such a direction, are in my opinion, powerful factors in support of the approach adopted by the Trial Judge in relation to the claimed unreliability of Anastasiou. 50 In my opinion, this ground of appeal should be rejected.

Unfairness of Summing Up 51 The complaint made by the appellant in respect of the summing up under this heading focuses on three areas. The primary complaint relates to the remarks made by the Trial Judge concerning Carlos. The Trial Judge said: "As to Carlos, there was absolutely no mention by the accused between he (sic) and Carlos who he said he first met in March 2000 until they next met completely by chance in a hotel where he, the accused, was buying some beer. No questions were put to Anastasiou to suggest that he and Carlos had been communicating with each other. No suggestion to Anastasiou that Carlos and he were talking about the machine, the importation of the machine, and what is to be done with it. There is simply no evidence that Carlos had anything further to do with either Mazzitelli or Anastasiou between 10 March and 10 May, yet on 10 May, in a sheer chance meeting, Carlos, on the accused's version of events told him that he was organising an electrician and that he, Mazzitelli, should tell this to Anastasiou. Yet, when Mazzitelli talked to Anastasiou he makes no mention in any of those telephone conversations of having spoken to Carlos, that he met Carlos or that Carlos was going to do anything with regard to providing an electrician." 52 Counsel for the appellant submitted that the inclusion of the word "completely" in the phrase "completely by chance" and the word "sheer" in the phrase "sheer chance meeting" were unfair, and that the reference to no questions being put and no suggestion being made to Anastasiou that Carlos and the appellant were talking about the machine etc, fell squarely within the decision in Regina v Camilleri (2001) NSWCCA 527. 53 The evidence given by the appellant was that he had gone to the Salsbury Hotel, which is about two streets away from his home, to purchase some beer and that when he went in he happened to see Carlos (whose surname was Barbor). The appellant said that Carlos told him to tell Anastasiou not to worry about getting an electrician because he had organised for an electrician to be sent in a tow truck to fix up the machine. The conversation as deposed to by the appellant did not involve any introductory pleasantries. According to the appellant, "he just got up and came over to me". There were no "hellos" or the like. The cross-examination on this topic was to the effect that having showered and had dinner, the appellant went down to the hotel "just to pick up some beer to take to Hogan's place to watch the football". He was then asked: "Q: You wouldn't believe it, but Carlos is in the same pub, is that right? A: Yes, correct. Q: According to you, you've only met this man twice? A: Correct. Q: Once when you happened upon him at CMP when you wanted a battery? A: Correct. Q: Is that right? A: Correct. Q: Just because you went there to get a battery, all of a sudden you're involved in importing a machine from South America, right? A: Correct. Q: Then you go to the pub to buy some beer to go to your mate's place? A: Yeah. Q: And Carlos is there? A: Correct. Q: Is that right? A: Correct."

Having been referred to the tape of the relevant phone call, which took place on the same night the appellant claimed to have happened "to bump into Carlos in the pub" the appellant agreed that there was no mention of Carlos in the conversation. 54 Against this background, I do not think it can properly be said that the inclusion of the words "completely" and "sheer" are unfair, or fall within the criticism that they "did not exhibit that degree of circumspection which (is) required when inviting an inference adverse to the accused" (Regina v Camilleri (supra at p1, para 67)). Furthermore, the references to the absence of cross-examination concerning supposed contact between Anastasiou and Carlos were no more, in my opinion, than a description of the factual situation revealed by the evidence as to the period between March 2000 (when the appellant says he met Carlos at CMP), and May 2000 (when he says he encountered him by chance in the Salsbury Hotel). What is said is not, in my opinion, a criticism of the appellant arising out of the way in which his counsel conducted the defence case. Rather, it is concerned with inherent probabilities or improbabilities, a proper matter for the jury to take into account. It is very different in effect and context from the passage detailed in paragraph 61 of Camilleri. 55 In my opinion, this ground of attack on the summing up fails. 56 Another basis on which the summing up by the Trial Judge was said to be unfair related to the character evidence called on behalf of the appellant. In the summing up, the Trial Judge referred to character evidence and other matters pertaining to the character of the appellant at different parts of the summing up. His first reference to the character witnesses was in the context of absence of mention to close friends of his proposed importation. However, the Trial Judge indicated that he would "return to those witnesses at a later point". He did this, just as he returned to the fact that the appellant was an employed plumber, had been for some years, that he lived with his family and that the appellant "was simply an employed, hardworking plumber who had demonstrated his industry by doing extra jobs outside of normal hours". Then, in the course of outlining to the jury the case made by the appellant he reminded the jury that the appellant had "called a number of witnesses who had known him for many years" and that "those character witnesses were unanimous in their opinion of him that he was a hard worker, an honest and reliable family man" and that the people who gave this evidence "were not mere acquaintances" they were people who had known him in various circumstances over the course of years and were people who "had a close and lengthy knowledge of him". 57 The Trial Judge then correctly directed the jury that they were entitled to "take (the) good character (of the appellant) into account when determining whether the Crown has proved beyond reasonable doubt that he is guilty of the crime with which he is charged" - that is, as going to the unlikelihood of his guilt. He also directed the jury that they could take good character into account "as a factor in assessing his credibility when he denied the charges here before you." 58 In my opinion, these were adequate directions and are not detracted from by the proper direction that the fact that a person is of good character "does not provide him with some sort of defence" or that "evidence of previous good character cannot prevail against the evidence of guilt which you find to be convincing notwithstanding the accused's previous good character". 59 This attack on the summing up fails. 60 A number of residual matters were pointed to in the summing up, for example, there was a complaint about the use of phrases such as "the Crown case", "in the Crown case", "the Crown submits", "the Crown relies upon", but that when dealing with the appellant's case, at one stage the Trial Judge said that he was going to put the accused's case "as I understand it to be". A perusal of the summing up reveals that a phrase of this kind was used on only two occasions, and that in relation to the Crown case he said, inter alia, "I will be putting the case for the Crown and the case for the accused as they appear to me to emerge from the evidence." On a fair reading of the summing up, the criticism that is made of it in this regard is without substance. It smacks of nit-picking: a process which should not be undertaken by this Court, which should be concerned with matters of substance. 61 The other matters relied on in this residual category, for example a reference to Mr Anastasiou being in no hurry but no equivalent comment being made in respect of the appellant, are really arguments of fact that appear to have been raised as arguments presented to the jury in the course of the addresses by the respective counsel. None of them individually establishes unfairness in the summing up. 62 In this context, it is relevant to note that quite early in the course of his summing up the Trial Judge informed the jury that: "If I fail to refer to some matter of fact which you consider to be important, place no significance upon my omission because it is your view of the facts which count. If I appear to form any views about this matter, you are quite entitled to ignore those views. I do not intend to express any views, but if I give you the impression that I have got some view about the matter, you are entitled to ignore that unless you coincidentally hold the same view."

In addition, he explained to the jury why more time would be spent on the Crown case than on that of the accused, namely: "Firstly, there was a lot more material in the Crown case, and secondly it is for the Crown to prove its case, not the accused to prove or disprove anything." 63 Having looked at each of the matters the subject of specific complaint, it is also appropriate for the Court to stand back and view the summing up as a whole. When this is done, I am of opinion that the attack on it as being unfair is not justified, and fails.

Summary as to the appeal against conviction 64 For the foregoing reasons I am of opinion that the appeal against the conviction of the appellant fails.

Severity Appeal 65 It was submitted on behalf of the appellant that his role in the importation of the cocaine was small and that, having regard to the sentences imposed on others whose roles were said to be greater than that of the appellant, the sentence imposed was excessive. This conclusion was supported by the further submission that the appellant had never been in custody, had no relevant criminal history, was of generally good character and was, as the Trial Judge found, unlikely to re-offend. 66 In his Remarks on Sentence, the Trial Judge found that:

(i) the appellant was a party to the arrangements whereby the machine which contained the cocaine was brought from Panama City to Sydney;

(ii) the appellant provided $6,120 in cash to meet customs duties and various fees involved in the importation, and recorded the amount contained in the envelope and the purpose for which such amount was provided;

(iii) the appellant collected and conveyed manuals and other documents relating to the machine to the Customs Broke r, JJ Lawson, in order to enable the machine to be cleared through customs;

(iv) the appellant gave directions to Anastasiou as to the handling of the machine once it had been delivered and instructed him, inter alia, not to open the crate in which the machine had been conveyed to Australia;

(v) there was no evidence to suggest that the appellant had the funds to finance the purchase and consignment of the cocaine from Panama;

(vi) others were involved in financing the purchase;

(vii) the distribution of the cocaine would have involved further organisation, but there was nothing to indicate that the appellant was or would have been part of such further organisation.

The Trial Judge's ultimate conclusion in relation to the role played by the appellant was: "Clearly, he was entrusted with an important role, indeed a vital role in facilitating the importation by the use of CMP as the ostensible importer, by providing the CMP stationery, by engaging in the essential task involved in the clearing of the crate from customs, by the payment of fees and duties, the collection of the cocaine laden machine and its temporary storage in the premises of CMP Autos … he had an executive function, albeit I do not believe he was responsible for the planning of the venture."

and: "The prisoner's contribution may have been ever so slightly less serious ( than that of Marouf El Hassan) who received a sentence of 15 years imprisonment with a non-parole period of 10 years following a plea of guilty." (parenthesis added)

However, in relation to the prisoner he also found that: "He was not a courier, nor did his role equate with that of a courier or a lowly paid functionary."

and the motivation for the commission of the crime was found to be "sheer greed" on the part of the appellant. 67 The Trial Judge was correctly of opinion that the crime of which the appellant had been convicted was serious and called for a lengthy goal sentence. Because the appellant was not a principal in the venture, (although he played a major - indeed crucial - role in the importation), the Trial Judge decided not to impose a sentence of life imprisonment. He thought the appropriate sentence, unadjusted by virtue of s 16G of the Crimes Act 1914 (Cth) (the Act), was 28 years. He then made the necessary adjustments, and arrived at the head sentence of 19 years and 8 months referred to in paragraph 2 above. This starting point of 28 years was submitted to be "too high". 68 In fixing the sentence, the Trial Judge compared the appellant's role with that of his co-offender Marouf El Hassan. He had pleaded guilty at an early stage, and provided some minimal assistance to the authorities. His sentence was discounted for the utilitarian value of his plea and the assistance he had given. It is thus not appropriate to claim that there is a disparity between the sentence imposed on the appellant when compared with that imposed upon Marouf El Hassan. The situations of the two offenders were different. The discounted sentence of Marouf El Hassan represents 75% of an undiscounted head sentence of 20 years, after due allowance had been made as required by s 16G of the Act. Such an undiscounted head sentence would reflect the slightly greater role played by Marouf El Hassan in the criminal enterprise than that played by the appellant. However, the appellant was not entitled to any discount of the kind earned by Marouf El Hassan by virtue of his early plea of guilty and minor assistance to the authorities. 69 In fixing the sentence, the court is required to have regard to the matters specified in Part 1B of the Act, s 16A(2) of which provides a "checklist" (DPP (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 377, per Kirby P, Campbell and Newman JJ) "many of the of matters to which regard is to be had. The principle governing the imposition of a sentence is that specified in s 16A(1) of the Act, the severity of it is "appropriate in all the circumstances of the offence". One of those circumstances is the consideration of general deterrence, although this factor is not referred to in the checklist (Regina v Paull (1990) 20 NSWLR 427, per Hunt J; DPP (Cth) v Said Khodor El Karhani (supra)). That factor has rightly been highlighted as important in drug importation cases. This is true at whatever level the person to be sentenced may be in the hierarchy involved in the commission of the offence in question. As was said in Regina v Olbrich (1999) 199 CLR 270: "…it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did. " (supra at 279, para 19) 70 In this regard, the observations by Wells J in Le Cerf (1975) 8 ALR 349, are relevant: "It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to apply his nefarious trade on a large scale. If there were no middle men and no underlings, there would be no top men in an organisation. If an organisation is starved of recruits, it must collapse. The simple truth is that a man who participates in such an organisation at any level - I repeat at any level - must expect, and will receive, a heavy penalty." (at 351)

This passage was approved by Spigelman CJ (with whom McInerney and Sperling JJ agreed) in Regina v Behar (NSWCCA, 14 October 1998, unreported), whilst the line of reasoning embodied in it was expressly adopted by Wood J (with whom Gleeson CJ and Grove J agreed) in Muanchukingkan v Regina (1990) 52 A Crim R 354 at 356. See also Regina v Laurentiu (NSWCCA, 1 October 1992, unreported). 71 Drug offences, including large importations of the kind involved in the present case, are difficult to detect. As a consequence, as was pointed out in Regina v Saxon (1986) 86 A Crim R 353: "… the element of general deterrence assumes added importance in the sentencing process." (at 356 per Dunford J) 72 In the present case, the finding by the Trial Judge was that the involvement of the appellant was motivated by "sheer greed". In such circumstances, the element of specific or personal deterrence must be taken into account, as well as the element of general deterrence. The fact that the legislature has seen fit to impose a maximum sentence that is not less than that which is applicable in the case of murder, is significant. It is indicative of the seriousness with which the community views such offences. In those circumstances a severe sentencing policy has been adopted and it is essential that it be maintained. Ambiguous signals should not be sent to those who engage in, or might be tempted to engage in, the drug importation trade because of the vast profits that can be made from such trade. As was said in Regina v Muanchukingkan (supra): "A clear sentencing pattern exists for those involved in the heroin trade, and particularly those who bring that commodity into this country for financial gain. In the absence of a consistently tough sentencing policy, there is nothing to deter overseas purveyors of this drug, or local entrepreneurs out to make quick profits, from perpetuating the trade which poses such a threat to this community and its young. The observations which his Honour (Wells J) made concerning the need for Australian courts to show their muscle to potential traffickers from overseas were not misplaced, and I would express my entire agreement with them." (supra at 356)

This statement applies to cocaine as well as to heroin, the harmful effects of both of which drugs was recognised in Budiman (NSWCCA, 8 September 1998, unreported). 73 Offences of the kind presently in question are treated most seriously by the courts and attract heavy penalties. In this regard, sight should not be lost of the fact that the amount of pure cocaine involved in the offence was more than eight times the commercial quantity fixed by the legislature. 74 The Trial Judge did not apply the most severe penalty that could have been imposed in respect of the conviction. In New South Wales, a life sentence for a man aged 29, as the appellant was at the time of being sentenced, would have involved a sentence that statistically would have been some 45 years in duration. A starting point of 28 years therefore represents a sentence that is significantly less than the maximum that could have been imposed on the appellant. 75 The sentence actually imposed, after appropriate discounts had been made in accordance with s 16G of the Act, should not, in my opinion, be regarded as manifestly excessive, having regard to the degree of involvement of the appellant in the offence, the nature of the drug, the quantity imported, and the fact that the crime was motivated by "sheer greed". Against such considerations, factors such as the age of the appellant, his previous absence of relevant criminal offences, his reliability and hardworking nature, and the fact that he was likely to be rehabilitated in due course, are fairly reflected in the sentence imposed. 76 In my opinion, it would be inappropriate for this court to intervene in relation to the sentence imposed. 77 For the foregoing reasons I would propose orders as follows:

(iii) Appeal against sentence dismissed. 78 SIMPSON J : I agree with O'Keefe J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Mazzitelli v Regina [2002] NSWCCA 436 FILE NUMBER(S) : CCA 60809/01 HEARING DATE(S) : 13/06/02 JUDGMENT DATE : 31 October 2002

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (39 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)